Our culture relies heavily on television as a
source of information. We make decisions based, in part, on the
opinions and conclusions of “investigative” news
reporters and popular celebrities. At the same time, these media
outlets must find and create programs that will make the public
watch. The traditional method of gaining television viewers has
been to increase the entertainment value of the programs available.
During the last decade, however, the media has increasingly touted
its status as a social “watchdog” - convincing viewers
that their programs will provide valuable information necessary for
preservation of the public’s livelihood. Although there may
not be actual truth in what the public hears on television, it has
a significant effect on market decision making and can be ruinous
to targets of the media’s attention.

Within this cultural context and the $500 billion
food industry in the United States, individual states have sought
to protect their economies by guarding their agricultural
industries.[1] In the wake of the landmark case , Auvil v. CBS
“60 Minutes”, where common law disparagement failed to
protect the plaintiffs, at least 13 states have enacted
agricultural/perishable product disparagement statutes as a warning
to disseminators of public information. These statutes were enacted
to ensure that claims critical of a state’s agricultural
industry are not merely false creations by the media, designed to
produce a public scare and increase ratings.[2]

Disparagement statutes are unique from their
oft-cited counterpart, defamation claims, but are part of the same
genre of tortious acts as “injurious
falsehood”.[3] Disparagement is an injury to an economic or
property interest based on a false statement of fact.[4] A disparagement defendant would be someone who seeks
to prevent others from dealing with the plaintiff by making false
and negative statements about the title to her property, the
quality of her property, or the quality of her business.[5] Legislative history indicates one state’s
desire to “protect farmers from food safety
scares”.[6]

Also called perishable product statutes, and more
cynically known as “veggie libel” laws, agricultural
disparagement statutes have faced criticism relating to the degree
they infringe on First Amendment rights. Some critics argue that
the Supreme Court’s analysis of defamation claims should be
applied to agricultural disparagement statutes. Using the
defamation analysis, many of the agricultural disparagement
statutes are criticized as unconstitutional for lacking a
sufficient fault standard, not requiring plaintiffs to prove
falsity, and not requiring proof that the statements were “of
and concerning” the plaintiff’s product.[7]

However, contrary to these negative assertions,
states have adopted strict requirements of proof for a
disparagement action to proceed under their statutes. Supporters of
agricultural disparagement statutes argue that these statutes are
not designed to insulate agriculture from criticism, but to require
persons and groups who criticize agriculture to do it truthfully,
without lies and innuendo.[8]

This paper will analyze how several different
states have approached agricultural disparagement statutes in
efforts to protect their unique economies and agricultural
industries. Specifically, this paper will examine how six different
state legislatures (Texas, North Dakota, Idaho, Alabama, Georgia,
and Colorado) have used different approaches in passing
agricultural/perishable product disparagement statutes to meet the
unique needs of their state. While there has been previous analysis
on the constitutionality of these statutes as a whole based on
their elements for causes of action, I argue that each
state’s agricultural disparagement statute should be
evaluated within the appropriate and specific context. This entails
an individual analysis for each state - based on that state’s
primary agricultural industry, the public’s perception of
that industry, and the actual consumers of those specific
agricultural products. The state legislatures that enacted
agricultural disparagement statutes had unique intentions behind
their involvement and a unique market they wanted to protect. (For
example, the market for a tobacco product would differ greatly from
the market for apples.) Above all, these states wanted to maintain
consumer confidence in their agricultural products and deemed it
necessary to enact statutes that would prevent this confidence from
becoming eroded by false public criticism.

In the beginning...Auvil v. CBS
“60 Minutes”

It all started with some apples, a news-creating
program, and a credulous public. On February 26, 1989 the CBS
television program “60 Minutes” aired a segment on the
industry use of daminozide on apples. Daminozide is more commonly
known by its trade name, Alar. Alar is used as a growth regulator
and allows fruit to remain on the tree longer. Apples have an
improved appearance, decreased irregularities, increased size, and
longer storage life with the use of Alar.[9]

Opening with a lengthy shot of a red delicious
apple emblazoned with a skull and crossbones, the segment was thick
with drama, included seemingly reputable sources, and ended with a
dire warning for the public that consumers could not distinguish
apples sprayed with Alar from Alar-free apples. [10] Sources in the news program included the Natural
Resources Defense Council, which had expressed concern over
research indicating that Alar degrades into a carcinogen.[11] Janet Hathaway, senior attorney for the NRDC,
spoke with certainty that Alar would cause thousands of children to
contract cancer.[12] Dr. John Graef, a professor of pediatrics at
Harvard Medical School, quoted that children are at even greater
risk to the dangers of Alar than adults.[13] Ed Bradley, who narrated the segment, even
proclaimed that when apples are processed into apple juice or apple
sauce, Alar degenerates into a compound that is also used as rocket
fuel.[14]

The economic result of this news program was
devastating. Although there was not scientific evidence that any
harmful effects could be attributed to Alar and most growers in the
Washington State did not use Alar, everyone in the Washington apple
industry suffered millions of dollars in losses. Growers lost their
homes and livelihoods. Entire communities were thrown into
depression.[15]

Eleven Washington state growers filed a class
action lawsuit on behalf of 4,700 growers, Their lawsuit was
eventually dismissed because of inability to prove the report on
carcinogenic effects was false.[16] CBS never had to prove that the news segment was
true even though the report devastated thousands of families.

The agriculture industry responded swiftly,
lobbying their state legislatures to enact agricultural
disparagement statutes where common law disparagement would not
reach. To date, at least 13 states have enacted these statutes
including Alabama, Arizona, Colorado, Florida, Georgia, Idaho,
Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota,
and Texas.[17] While Colorado’s statute enforces a criminal
penalty, the statutes of the other 12 states are similar in their
definition of a statutory cause of action for civil liability. Six
of the states include four major provisions of 1) a statement of
legislative intent, 2) a definitions section, 3) a statement of a
cause of action for disparagement, and 4) a statute of
limitations.[18] The remaining states omit either the statute of
limitations or the statement of legislative intent. While the
states’ statutes have these structural similarities, the
statutes differ considerably with regard to who is allowed a cause
of action, the standard of conduct that triggers liability, the
requirement of falsity, and the type of recovery
available.[19]

Texas

Texas enacted the False Disparagement of Perishable
Food Products Act in 1995 to protect the state’s agricultural
and aquacultural industry.[20] The Texas bill applies only to perishable goods.
The legislature wanted to protect those in the agricultural
industry whose goods would have rotted and become unusable before
an erroneous public statement could be rectified or before members
of the industry would have the opportunity to prove the false
statement was inaccurate and untrue. Non-perishable goods did not
receive protection because they could be stored and used later when
the effects of the false bad publicity had dissipated.

The Texas legislature enacted the statute after
recognizing that the state’s agricultural industry was
particularly vulnerable to “the careless or malicious use of
false or misleading information and the subsequent market
effect.”[21] In addition, the legislature wanted to ensure that
“claims about the health, safety and wholesomeness” of
the food produced in Texas “are based on reasonable, reliable
scientific data, not sensationalized claims made by groups or
individuals seeking publicity for their agendas”.[22]

The Texas legislature realized and noted the threat
that unsubstantiated negative media could have on Texas’
agricultural economy and sent a warning that Texas law would
provide a cause of action and remedy for those affected by
fact-less assertions by the media and other groups. The legislative
history of the False Disparagement of Perishable Foods Act details
the skepticism that supporters of the Act had towards the media,
“Special interest groups have a vested interest - sometimes
motivated for their need for publicity - in keeping the public
agitated about the safety of food products. The willingness of the
news media to disseminate sensational claims about food safety,
without investigating the claims, has hurt the agriculture
industry.” [23] Not all Texas legislators were supportive of the
Act, some being concerned with its broad reach and prospect of
rampant litigation.[24]

The economic threat that false negative publicity
of Texas agriculture could have on the state is significant. The
Texas state economy relies heavily on agriculture: agriculture is
the 2nd largest industry in Texas, 1 of every 5 Texas
has a job in the agricultural industry, agriculture generates more
the $45 billion in economic activity across Texas, and Texas
produces nearly 25% of the beef that is consumed nation-wide - more
than any other state.[25]

On April 16, 1996, cattlemen operating in the
panhandle of Texas had an opportunity to try out the new Texas
statute with the airing of the Oprah Winfrey program entitled,
“Dangerous Food” which included a segment on Bovine
Spongiform Encephalopathy (BSE). BSE is commonly known as
“Mad Cow Disease” and is associated with a variant that
affects humans called Creutzfeldt-Jakob Disease (CJD). Both BSE and
CJD are characterized by the formation of holes in the
brain.[26]

The topic of the show was created in a
brainstorming session by Alice McGee, a senior supervising
producer, and James Kelley, an editor.[27] A researcher for the show interviewed numerous
officials at the Center for Disease Control, U.S. Department of
Agriculture, and several professors and researchers who all
expressed their opinion that “Mad Cow Disease” could
not occur in the United States. However, the researcher finally got
a positive response from Mr. Howard Lyman, a vegetarian who is the
director of the Humane Society’s Eating with Conscience
campaign, who asserted that “Mad Cow Disease” could
produce an epidemic in the United States worse than AIDS.[28] As expected, Mr. Lyman was invited as a guest for
the show.

During the airing of the show Mr. Lyman claimed
that a BSE-CJD outbreak could occur in the U.S. because of the
feeding practices of cattle operators. Two other guests on the
show, Dr. Will Hueston representing the USDA and Dr. Gary Weber
representing the National Cattlemen’s Beef Association,
argued that U.S. beef was safe. However, they were largely edited
out of the program, including eight minutes of Dr. Hueston’s
statements being edited down to only 37 seconds for the
broadcast.[29] Also edited out of the program was Howard
Lyman’s own admission that U.S. beef was safe.

After the April 16, 1996 broadcast of the
“Dangerous Food” program, the cattle market in the
Texas Panhandle decreased dramatically from a pre-airing value of
$61.90 per hundred weight down to a post-airing price in the mid
50’s.[30] Volume of sales also decreased. On the actual day
of the show, the live cattle futures market at the Chicago
Mercantile Exchange reached its limit-down decrease of $1.50 per
hundred weight within one hour of the show’s 9 a.m. broadcast
and caused the trading pit to close for the day.[31] Cattle operators and traders in live cattle
futures dubbed it the day of the “Oprah crash”.

One week later, Dr. Weber and another cattle
rancher were invited back on the show to refute the
“Dangerous Food” broadcast and concluded by assuring
viewers that the U.S. cattle market was safe. However, these
measures were inadequate to restore the live cattle prices for
ranchers in the Texas panhandle to pre-show levels.

Case History

On May 28,1996 the Texas panhandle cattlemen filed
suit in district court against Oprah, Howard Lyman, and the
show’s production company (Harpo). The cattlemen claimed over
$10.3 million in damages resulting from the show’s impact on
cattle prices.[32] The case went to trial in January of 1998. The
claims included, among others, liability under the Texas False
Disparagement of Perishable Food Products Act and a separate claim
of business disparagement. The defendant moved for judgment as a
matter of law on all of the claims, where the court ruled against
the cattlemen on the perishable food act . The jury was charged
only with deciding the business judgment claim, on which the
plaintiffs eventually lost.[33] The plaintiffs appealed to the 5th
Circuit Court of Appeals arguing, among other items, that the food
disparagement claim was wrongfully terminated. The plaintiffs lost
on all counts in a decision reached February of 2000.

The Texas legislature and cattlemen were stunned
with the courts’ decisions in regard to the False
Disparagement of Perishable Food Products Act. It was the bedrock
of their case and best opportunity for recovery. The problems with
the cattlemen’s case was that their product was not
sufficiently “perishable” as defined under the
Act.[34] The district court understood that fed cattle in a
feed lot would lose value and become less profitable if cattle
operators waited for market recovery from an unforeseen shock.
However, the court justified the dismissal by asserting that the
cattle would not become value-less from this delay. The
5th Circuit declined to address the issue of whether
cattle should be considered a “perishable food product”
as defined by the Texas Act, and looked instead at whether the
defendants knowingly disseminated false information about
beef.[35] Finding against the cattlemen, the appeals court
reasoned that Oprah could rely on the opinions of Lyman, and that
it could not be proven that Lyman knew his statements were
false.[36] Also, claims based on the editing of a news
program require a strict standard of proof, which was far short in
this circumstance.[37] The cattlemen lost their right to challenge the
jury instruction on appeal because of their counsel’s failure
to challenge the instruction at the initial trial.[38]

While the outcome of the Texas cattlemen was
certainly not favorable, the legality and status of the Texas False
Disparagement of Perishable Food Products Act seems to have
remained intact. The federal district and appeals court both
declined to delve into the constitutionality of the Act, and
instead based their decisions on definitions the Texas Legislature
used in drafting the Act.

Critics of the district court’s definition of
“perishable food product” have credible arguments on
why cattle should be considered within the definition.[39] They assert the fact that there is a window of
time for cattle to achieve a finished weight. After this window has
lapsed, cattle begin to accumulate fat instead of muscle -
decreasing their marketability. The health conscience public places
a premium on fat content in meat and will not purchase beef that is
laden with fat, just as the public would not purchase fruit that is
too soft or ripe.

Failure of the Act to protect the Texas cattle
industry, plus greater public scrutiny and resentment towards
litigation, have brought proposals to repeal or modify it.[40] These proposals have been rejected thus far.
However, the legitimacy of the Texas Act and agricultural
disparagement statutes as a whole may end up being shaped by the
Oprah cases even though the courts did not opine on the lawfulness
of these statutes.

The Texas statute has received further media
attention and ridicule for another lawsuit involving Texas emu
ranchers and the Honda corporation. In 1997, Honda aired a
tongue-in-cheek commercial where one of the actors stated,
“Emus, Joe. It’s the pork of the
future.”[41] The ranchers filed suit in federal court alleging
$75,000 in damages. The ranchers were not successful and merely
gave further ammunition to critics of agricultural disparagement
statutes.

The Texas Beef Group’s pursuit of recovery
may have hurt other agricultural industries who would have had a
stronger claim with the Texas Act. The Texas Beef Group may not
have expected recovery at all, but sought to send a warning to
critics of the beef industry that untrue negative statements would
be met with prolonged and costly litigation. (The Texas Beef group
extended the Oprah litigation for over 4 years.)

Some commentators view the Oprah litigation a
success for all state agricultural disparagement statutes by
interpreting it as a test case for the constitutionality of these
statutes. Because neither the district nor the appeals court could
find that the Texas Act violated 1st amendment rights,
it could be inferred that these statutes are generally permissible.
However, it may be more likely that the court chose the easiest
path to reaching a decision and did not want to get mired down in a
decision with constitutional implications.

North Dakota

North Dakota is one of the states that has enacted
an agricultural disparagement statute most recently. Indeed, North
Dakota enacted its Agricultural Product Defamation Act in 1997,
after the Texas cattlemen had filed their first complaint in the
Oprah lawsuit. However, their belated effort in enacting an
agricultural disparagement statute is not a measure on the
importance that such a statute could serve in the state’s
agricultural industry and economy.

Agriculture is North Dakota’s major industry,
comprising 38% of the economic base of the state; 24% of the
state’s employment is related to farm or farm-related jobs.
The state’s two most important crops are wheat (at 38%) and
cattle (at 12%).[42] The state’s heavy reliance on agriculture
within their economy, and external factors that affect the value of
agricultural output (such as weather, price changes, farm policy,
and foreign trade), cause North Dakota’s net farm income to
experience significant year to year volatility.[43]

North Dakota’s Agricultural Product
Defamation Act, is similar to other states’ agricultural
disparagement statutes by providing a cause of action against
someone who disseminates false and disparaging information about an
agricultural industry or product.[44] Some of the unique aspects of the North Dakota
statute is that it also covers statements made about the management
of an agricultural operation, and that it provides treble damages
for statements made with malice.[45] Another notable aspect of the statute is that it
provides a cause of action for each individual who is part of a
general class or group whose agricultural products have been
disparaged, regardless of the size of the class.[46]

However, the most unique aspect of the North Dakota
statute resides in the lobbying group who pushed for its passage.
The North Dakota Equine Ranching Association is a group of
twenty-nine ranches who collect pregnant mares’ urine and
sell it to pharmaceutical companies who use it to produce Premarin-
an artificial estrogen that is often prescribed in human pregnancy.
The urine is collected from approximately 75,000 horses each year
by attaching rubber sacks to the pregnant mares’
groins.[47] To increase the estrogen content of the urine, the
horses are not given free access to water.[48] The Equine Association was the only group who
presented the North Dakota legislature with specific instances of
product disparagement and a proposed use for the statute.[49] As a result, the North Dakota statute covers
agricultural practices as well as products.[50] The equine ranchers get further protection from
sections of the statute allowing individual claims for group
disparagement.

The “tailor made” quality of these and
other agricultural disparagement statutes strikes a nerve with some
commentators who argue that statutes with specific protections are
even more violative of 1st ammendment rights.[51] What these commentators have failed to realize is
that almost EVERY state and federal statute that is passed has
unique provisions to accommodate specific groups that need
additional protections.

Although North Dakota’s agricultural
disparagement law has not been tested in the federal courts for its
constitutional legality, it provides an interesting legislative
history for a state with significant dependence on agriculture for
its economic vitality.

Ohio

Ohio enacted its own agricultural disparagement
statute with an eye and ear towards the critics. However,
litigation between a public interest foundation and an egg company
hurt the statute’s legitimacy.

The Ohio legislature was initially concerned about
the perception that their agricultural disparagement statute was
passed merely because of the lobbying effort of the agricultural
industry. The legislature actually inserted language within the
statute to cite the beneficiaries of the agricultural disparagement
statute. The statute asserts the right of the public to receive
truthful information regarding their food. The statute also
proclaims to guard the welfare of the food consuming public, the
economy of the state, and those involved in the agricultural
industry.[52]

In statistics compiled by the Ohio Department of
Agriculture in cooperation with the USDA, Ohio ranks first in the
nation in egg production, within the top five in the nation in many
categories of processed dairy products (including but not limited
to Swiss cheese, cottage cheese, and ice cream), and is the leading
state in the nation in the number of livestock slaughter
houses.[53] With this data, it is evident that the nation
significantly depends on Ohio’s agricultural output for some
of the staple food supplies we use everyday. In turn, Ohio’s
economy is largely dependent upon agriculture, specifically the
slaughtering plants and egg production.

In 1997, the Ohio Public Interest Group (OPIG)
issued a warning to the public that Buckeye Egg engaged in the
practice of repackaging and redating eggs for sale to the public.
Although it was not proven that any of these eggs made persons ill,
OPIG issued a statement that exaggerated the enormity of the
situation and ended with a dire warning that they did not know how
many people had consumed these eggs and were made ill. Agrigeneral
Co. filed a lawsuit on behalf of Buckeye Egg against OPIG using
Ohio’s agricultural disparagement statute, but later dropped
the lawsuit a year later amid derision from the media. Media
attention was given to the defendant’s claims of working in
the public interest and the lack of monetary remedy because of the
defendant’s finances. Certainly, the lawsuit was intended as
a warning to OPIG and others that any false public statements would
be met with costly litigation. However, in this case, the defendant
did not have resources for litigation and relied instead on
pro-bono counsel.[54]

The media surrounding the Buckeye Egg case and
criticisms of the Ohio agricultural disparagement provision gave
such statutes another setback in achieving legal legitimacy. The
statute has been used infrequently in Ohio since its passage.

Idaho

Idaho’s perishable product statute is
atypical from previous statutes that have been discussed. The
standards of what constitutes an actionable tort is narrower in
Idaho’s version of the agricultural disparagement statute.
Rather than allowing a claim for generic statements criticizing an
agricultural industry, such as the statutes in Texas and Ohio,
Idaho’s statute is not applicable unless the disparaging
statement is specific to a plaintiff’s particular
agricultural product.[55] A plaintiff making a claim under the statute also
bears a greater burden of proof than other states’
statutes.[56] Recovery is limited to actual pecuniary damages
under the Idaho statute - making alternative courses of common law
action a more attractive route for monetary remedy.

Idaho’s enactment of an agricultural
disparagement statute is not surprising. Idaho has a lot to
protect, agriculturally speaking. It is most famously known for its
potatoes, being the number one producer of potatoes in the U.S. by
providing a whopping 29% of the nation’s crop.[57] They are also the number one producer of various
varieties of beets, peas, and trout.[58] It is not surprising in this vast and rural
state that agriculture is the number one industry, worth $3.4
billion annually in the value of production.[59]

Typical criticisms of a state’s agricultural
disparagement statute are that they are too generic, infringe on
free speech, and are merely the product of lobbying and political
muscle. However, Idaho’s statute faces unusual criticism that
it is too constitutional, and practically useless.[60] During the drafting of the Idaho statute, the
legislature’s concerns with free speech infringement led it
to specifically omit a cause of action for general product
disparagement. Therefore, the state’s agricultural industry
is without a remedy if a false and public criticism is broadcast
without addressing a specific producer of the agricultural product.
The legislature of Idaho essentially adopted an agricultural
disparagement statute that would comply with the U.S. Supreme
Court’s analysis of the defamation statutes.[61] While even the common law recognizes the different
claims of product disparagement and defamation, the Idaho
legislature erred on the side of caution by holding its
disparagement statute to the strictest of standards.

Idaho’s code would be the most sturdy of the
disparagement statutes under a constitutional challenges, but it
fails to realistically protect the economic interests of the
state’s agricultural producers. The legislature placed
priority on the constitutionality rather than the practical
effectiveness of the statute. Some commentators express doubt that
the Idaho statute will ever be utilized.[62] The weak statute may be a reflection of the
legislature having consulted and submitted a draft bill to the
Idaho Attorney General for approval.[63]

Another fact to consider is that Idaho’s main
agricultural products - potatoes, beets, and peas - do not
typically receive much criticism or attention from public
activists. Idaho may have not really needed an agricultural
disparagement statute but the legislature was obliged to pass one
to show support for agricultural producers in the state.

Alabama

In direct contrast to Idaho’s agricultural
disparagement statute, which meets and exceeds constitutional
provisions for protecting the defendant’s rights, is
Alabama’s statute with the most lenient of requirements for a
cause of action. Alabama is the only state that allows a cause of
action regardless if the defendant is at fault in making a false
and disparaging statement about the state’s agricultural
products. Therefore, a false statement, made in ignorance, is
actionable in Alabama.[64] In addition, Alabama is one of only two states
that has a presumption of falsity for statements that are not based
upon reasonable and reliable scientific evidence.[65] The statute fails to state who bears the burden of
proof.

Why did the Alabama legislature give such liberal
treatment to the agricultural disparagement statute? It is possible
that the legislature acted in disregard to the constitutional
concerns that have been raised against product disparagement
statutes. The agricultural economy of the state may also have been
an influence.

By far, the primary agricultural commodity of
Alabama is broilers (meal chickens). Broilers compose of 54.7% of
the state’s total farm receipts.[66] Alabama supplies 12.4% of the broilers nation
wide. Broiler production contributed $1.63 billion to the
state’s economy in 1996.[67]

Because of Alabama’s prominence in the
poultry industry, they have also faced harsh criticisms from animal
rights groups such as PETA. There have been many
“investigative” news reports, newspaper articles, and
magazine articles that have criticized the poultry industry at the
prompting of PETA and other groups. Indeed, within the last decade,
the poultry industry has faced the most criticism in the
agricultural industry. Unlike the well funded and organized beef
industry, the poultry industry has more independent operations that
have not mounted a public relations defense to these criticisms.
The Alabama legislature may have responded by making it easier for
independent farmers to pursue a financial remedy for negative
publicity generated by their opponents. For a state that has one of
the highest poverty ratios in the U.S., and where a great
percentage of the farms are small, independent, and family
operated, such protection may have been needed to guard the
state’s economy.

Georgia

Georgia’s perishable product disparagement
act was effective in 1993, not long after the Auvil case was
decided. It provides a cause of action producers, marketers, or
sellers to recover damages for the disparagement of any perishable
product or commodity.[68] Along with Alabama, it is the only state where
there is a presumption of falsity if a statement is not based upon
reasonable and reliable scientific evidence.[69] Therefore, the plaintiff does not need to prove
that the statement is false. He must only show that that there is
not scientific evidence to support the defendant’s claim.
This similar aspect between Alabama and Georgia might be better
understood if one looks at the similar agricultural economy between
the two.

Everyone knows that Georgia is famous for its
peaches. However, the agricultural commodity that drives
Georgia’s economy is the same as Alabama, broilers. Georgia
is the number one exporter of broilers in the United States,
comprising 43.8% of the state’s total farm receipts and
representing 15.2% of the poultry and poultry products used in the
nation.[70] Georgia is also the leading exporter of peanuts in
the nation, comprising 7.3% of the state’s total farm
receipts.[71]

Georgia’s reasons for enacting a statute that
allows for the unique presumption of falsity might be similar to
the points discussed above with respect to Alabama. The poultry
industry’s individualization, lack of strong organizational
PR efforts, and constant target of critical media and animal rights
groups may have forced the legislature to give stronger protections
to plaintiffs in the state’s agricultural disparagement
law.

Colorado

Colorado’s perishable product disparagement
law is unique from any other state’s statute because it
provides for criminal sanctions rather than civil liability. The
Colorado legislature’s first attempt enacting an agricultural
disparagement statute was vetoed by the Governor on First Amendment
grounds.[72] However, the Governor allowed the legislature to
amend a criminal statute to make it unlawful to knowingly make
false statements about food products.[73] Specifically, the statute prohibits the
destruction (including decay) of food. It was amended to cover
persons who issue false statement, causing the destruction of
food.[74]

Colorado’s primary agricultural commodities
are cattle and calves, comprising over 50% of the state’s
total farm receipts and 6.4% of the nation’s total
value.[75] It ranks as the 5th state in receipts
from livestock. In this respect, Colorado is similar to
Texas’ agricultural economy, although it is much less
diversified.

Despite the governor’s constitutional
concerns, the Colorado legislature was intent on protecting their
agricultural economy, and amended their criminal code to account
for shortcomings in civil remedies. Although the law exists in the
criminal code, it is doubtful that many, if any, people will ever
be charged with causing the decay of food by making erroneous
statements concerning its quality. The existence of the statute is
more of a statement of support for the state’s agricultural
industries.

Conclusions

Agricultural/perishable product disparagement
statutes are a creation by individual state legislatures to protect
their state’s agricultural economies. Their constitutionality
and reasonableness should not be judged on the whole, but should be
based on a complete evaluation of each state’s specific
economy. Too often, legal and public criticism of these statutes
has been made in a vacuum. These critiques have ignored the
individuality of each state’s economy and its dependence upon
a specific agricultural industry. The validity of an
agricultural/perishable product disparagement statute should be
based on a more thorough evaluation of the industry that the state
is trying to protect and whether that industry requires special
protection.

Any determination of the reasonableness of a
state’s agricultural/perishable product disparagement statute
should also include an evaluation of the level of threat that a
state’s agricultural economy faces. States, such as Idaho,
who have adopted strict standards for plaintiffs claims, probably
face less erroneous criticism than states, such as Alabama, who
have adopted more lenient standards.

Agricultural/perishable product disparagement
statutes can serve a valuable function for states by helping to
preserve their agricultural economy in spite of erroneous harmful
publicity. If these statutes gain public and legal acceptance, they
could be an effective tool for deterring false statements issued by
groups with self-interested agendas.

[1] See Michael R. Taylor, Preparing America’s
Food Safety System for the Twenty-First Century--Who is Responsible
for What When it Comes to Meeting the Food Safety Challenges of the
Consumer-Driven Global Economy? , 52 FOOD & DRUG L.J. 13,
13 (1997).

In this chapter, “perishable food
product” means a food product of agriculture or aquaculture
that is sold or distributed in a form that will perish or decay
beyond marketability within a limited period of time.

(a) A person is liable as provided by Subsection
(b) if: (1) the person disseminates in any manner information
relating to a perishable food product to the public; (2) the person
knows the information is false; and (3) the information states or
implies that the perishable food product is not safe for
consumption by the public.

(b) A person who is liable under Subsection (a) is
liable to the producer of the perishable food product for damages
an any other appropriate relief arising from the person’s
dissemination of the information.

[24] See H.J. of Tex., 74th Leg., C.S. H.B.
722 (1995) (Representatives Bailey and Dutton proposed a tongue in
cheek amendment, later dropped, that would provide immunity to
comedians earning less than $17,000, French chefs and chefs with
credible French accents, former presidents, people younger than 13,
and comments by anyone able to demonstrate the food was “icky
tasting.”)

[42] See Agriculture and North Dakota ,
http://www.umanitoba.ca/afs/agric_economics/ardi/agricandndecon.html

[43] See Id. citing, Coon, R.C., F.L. Leistritz, and
T.A. Majchrowicz. 1992. The role of agriculture in the North
Dakota economy. Agricultural Economics Statistical Series Report
No. 50. North Dakota State University: Department of
Agricultural Economics and Institute for Business and Industry
Development.

[49] Jennifer J. Mattson, North Dakota Jumps on the
Agricultural Disparagement Law Bandwagon by Enacting Legislation to
Meet a Concern Already Actionable Under State Defamation Law and
Failing to Heed Constitutionality Concerns , 74 N.D. L. Rev.
89, 106-107 (1998) (animal rights groups and the national media
have claimed the ranchers mistreat and abuse their horses).

[74] Colorado Statute §35-31-101 (“It is
unlawful for ... [anyone] knowingly to make any materially false
statement, for the purpose of maintaining prices or establishing
higher prices for the same, or for the purpose of limiting or
diminishing the quantity thereof available for market, or for the
purpose of procuring, or aiding in procuring, or establishing, or
maintaining a monopoly in such articles or products, or for the
purpose of in any manner restraining trade, any fruits, vegetables,
grain, meats, or other articles or products ordinarily grown,
raised, produced, or used in any manner or to any extent as food
for human beings or for domestic animals).

[75] Economic Research Service, U.S. Department of
Agriculture (1999) at http://www.ers.usda.gov/statefacts/CO.HTM